How many times have you heard, on TV, the phrase “alleged” suspect? Or the phrase “innocent until proven guilty?” Or “presumed innocent?” In Latin, ei incumbit probatio qui dicit, non qui negat means the burden of proof lies with the one who declares, not who denies.

Most people do not know that this fundamental presumption, innocent until proven guilty (or, presumption of innocence), is not found in our Constitution…at least not explicitly. The presumption of innocence is widely held to come from the 5th, 6th and 14th amendments.

However, in common law, the presumption of innocence has been upheld. In Coffin v. U.S., 156 U.S. 432 (1895), the Supreme Court held that “[t]he principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

Yes, I understand that, back in 1895, the Supreme Court held the presumption exists in criminal law. Obviously, this is a Medicaid blog and I have averred, and will continue to aver, that my clients are not guilty of any criminal Medicaid fraud. But, even in the civil arena, a similar presumption of innocence exists and, as pertaining to Medicaid audits, is not being followed. The civil audits being conducted on health care providers that accept Medicaid are: post-payment reviews, prepayment reviews, and Recovery Audit Contractor (RAC) audits.

I am defining post-payment reviews as audits that are supposed to be used to assure that payments are made for services delivered to beneficiaries.

I am defining prepayment review as a 6 month audit/review (initially…it can be longer or you can have your Medicaid contract terminated after 6 months) conducted on a provider’s records before reimbursement for services rendered due to “credible allegations of fraud,” “identification of aberrant billing practices, “data analysis,” or “other grounds.”

I am defining a RAC audit as an audit of past claims (up to 3 years ago) by another DMA agent either Public Consulting Group (PCG) or HMS, which determines that, based on its own subjective determination, the providers’ documents are noncompliant and the provider owes the State a monetary amount of $____. The provider receives a Tentative Notice of Overpayment (TNO). It is important to note that these TNO amounts are extrapolated. Which means if the DMA agent finds $1,000 worth of “alleged” overpayments, the agent can extrapolate the amount to be $1 million (This example is merely for the sake of this blog).

Going back to the presumption of innocence in criminal law, as I said, civil law has a similar presumption. It is called the burden of proof. In Latin,”semper necessitas probandi incumbit ei qui agit,” means, in the best translation of what I have found, “the necessity of proof always lies with the person who lays charges.”

Similar to: “The burden lies with the one who declares, not denies?” I think so. In essence, the person that accuses another bears the “burden of proof,” not the accused. But what does that mean? In simple terms, it means that the person who accuses another must prove every element of the crime/tort/wrongdoing in a court of law. If that accuser fails to prove every element, then the accusee (the person accused) does not even have to defend him or herself. Since the burden lies on the accuser, the accuser must prove all elements before the accusee even has to defend him or herself. If the accuser fails, the case is dismissed.

The weight of the “presumption of innocence” and the “burden of proof” resting on the accuser is the heart of our judicial system, both criminal and civil.

So what happens if we take both the presumption and the burden away?

Johnny could tell the NC Bar that Susie, a local lawyer, has committed unethical acts. The NC Bar would immediately either punish Susie, suspend her bar license or terminate her Bar license without the Bar questioning Johnny, Susie, or even give Susie a chance to defend herself.

Tommy could be shopping at his local Harris Teeter, looking for Super Double coupon deals, and a policeman could arrest him for shoplifting without any evidence, except that Ms. Doe, the little old lady that lives next to Tommy and hates his my dog told the policeman that she saw Tommy shoplift.

Or, even worse, a nearby small pet store could call the IRS, contending its competitor down the road has committed tax fraud. IRS, without an investigation, closes the competitor’s shop and forbids any customer to pay it until the full investigation.

How are the above examples any different from these?

You receive a Notice of Prepayment Review. The Review states that “based on credible allegations of fraud” (you do not get to know who accused you), we are suspending all Medicaid reimbursements to you, effective [DATE]. For the next 6 months you have to prove your innocence. You cannot appeal this decision.

Guilty until proven innocent.

Or: You receive a Tentative Notice of Overpayment (TNO) that, based on a review of 10 clients, you owe $500,000 (extrapolated), and the provider has 15 days in which to send the funds. BTW: you can appeal. But the decision has already been made that you owe the money without hearing your defense.

Guilty until proven innocent.

Or, even better, you have been, for months, trying your hardest to keep up with all the over-inclusive records requests from the Carolinas Center of Medical Excellence (CCME), all the final requests, and all the nebulous denials (for reasons other than what was requested in the final requests). You get to a hearing or a mediation and discover that, if you provide 5 service notes, that you will have passed prepayment review. So you tell CCME that you will get the service notes. And you are told that, most likely, the service notes will be considered invalid, because you will, most likely, re-created the notes, since you didn’t provide the notes earlier.

Hmmmm…How does one prove that is service note is NOT fraudulent?

Guilty until proven innocent.

“It is better to save a guilty man than condemn an innocent one.” Voltaire

Search the Law Library

Search for:

Knicole C. Emanuel

Knicole C. Emanuel is an attorney at Potomac Law Group in Raleigh, NC where she concentrates on Medicare and Medicaid regulatory compliance litigation. See legal disclaimer @ "About Knicole."
Follow her on Twitter at @medicaidlawnc.